Transcript of 'Old Law, New Law' episode 1: Contempt of Court

Nick: Welcome to ‘Old Law, New Law’, a podcast by the Victorian Law Reform Commission. I’m Nick Gadd.

Gemma: And I’m Gemma Walsh. It’s great to have you with us. In this podcast we will be asking what’s wrong with the law, how can we fix it and how can we make the law clearer, more up to date and fairer.

Nick: Today we’re looking at contempt of court, an issue that’s been in the news a lot lately. We’re talking to Anna Beesley and Helen Donovan who are working on the current review of contempt of court by the VLRC, and Bruce Gardner, who’s the chair of the VLRC. So, Anna Beesley, this review is looking at contempt of court but one of the first challenges is that it’s a tricky concept to define, so what exactly is it?

Anna: Contempt of court is any act that interferes with the proper administration of justice. It’s the set of powers given to the courts to deal with such conduct in order to enable the proper administration of justice.

Nick: So that can be a great range of things and we’re going to get into that in the programme, but why does the law need to be reformed?

Anna: Well, it’s a very complex array of legislation. It covers a wide range of different behaviours and conduct. The language itself is antiquated and quite foreign to people today. It talks about things like scandalising the court, is one type of contempt.

Nick: Well let’s start with that one. Scandalising the court – wasn’t there a case involving some federal ministers just last year who were accused of that very thing, Helen?Helen: That’s right. The three ministers were asked to appear before the Court of Appeal in Victoria because of some comments they’d made about the sentencing practices of the court. There was no case commenced against them, but they were asked to appear. I’m doing air quotes around ‘asked’ here because it wasn’t really… they didn’t really have a lot of choice in the matter to appear before the court and essentially explain why they shouldn’t be charged with contempt in the form of scandalising the court.

Nick: And they apologised, didn’t they?

Helen: They did, in time. They didn’t proffer that apology immediately. The court wasn’t entirely clear about what the nature of the charge against them was because of the uncertainty of what contempt is and how contempt proceedings should be commenced. It was, in a sense, there was some informality about it. They were summonsed to come to the court and explain why they shouldn’t be charged but they weren’t told exactly what it was that they had done wrong; what statements they’d made which equated to contempt. And so, there was a dialogue that followed between the Solicitor-General representing them and the court. And the court then reserved to think about, ‘well, what next? What step’s next?’ And then in the meantime, the ministers had more time to reflect and offered an apology. And then in the circumstances, no charges were laid. No contempt charges were laid.

Nick: It all sounds like it was kind of up to the judges, really, as to whether they got charged or not.

Helen: It was entirely up to the judges. It was within the discretion of the judges. But the ministers, I suppose, were in a position where it was apologise or face the prospect of contempt proceedings. So, you might question what the value of an apology is or what does an apology mean in those circumstances. So, it’s a vexed… it’s a pretty vexed area of the law.

Gemma: And it’s up to the judges.

Helen: It’s up to the judges. It brings into sharp relief the idea that obviously we should be able to talk about the work of the courts and we should be able to talk about, you know, how they perform their tasks. Whether they do it fairly or whether the way they do their work reflects community standards. We should be able to criticise the work of the courts, but at the same time we also need to preserve the authority of the courts and the dignity of the courts.

Nick: One of the interesting things about contempt is that almost anybody can commit it, can’t they? I mean, including a defendant. There’s this thing called contempt in the face of the court. Wasn’t there a case of a man who went to court who was an accused and he had a t-shirt that said ‘villain’. What was that all about?

Helen: Well, that person wasn’t, in the end, charged with contempt in the face of the court but they were warned that they might be if they didn’t remove their shirt or turn their shirt inside out. I suppose the view of the judge was that in wearing that shirt that said ‘villain’, this defendant was bringing the court into disrepute; was not taking the process of the court seriously and therefore undermining the authority and the integrity of the court.

Nick: So, what did the judge tell him to do?

Helen: Initially to change the shirt or at the very least turn it inside out. There was a little bit of to-and-fro before a compromise was inevitably reached. But all of that happened under the sort of shadow of the law of contempt and the threat that this particular person might be charged with contempt if they didn’t change their shirt.

Gemma: But it’s a concern if somebody can walk into a court and not know that they are going to be in contempt. Because what’s contemptuous for one judge may not be for another, so how…?

Helen: That’s right, it’s very much... One the one hand, we can quite readily agree with the idea that a judicial officer should be able to and needs to be able to control the proceedings before them so that they’re efficient and fair and everybody who’s in the court is safe and not subject to abuse, that sort of thing. It’s easy to agree with that. But then in the day-to-day of administering that law, obviously yes, different judicial officers are going to have very different views about what sort of behaviour is so disrespectful that it crosses the line and becomes contempt or disrupts the proceedings. We can imagine a judge who’s just had too much of people’s mobile phones going off, for example, and says, “the next time, you know, I hear a mobile phone I’m going to deal with this person for contempt”. You can imagine that circumstance at the end of a long day, perhaps in a Magistrate’s Court. And one of the most famous contempt in the face of the court cases in Victoria involves a defendant blowing a bubble-gum bubble and popping it and the judge observing this and being very upset about it and in fact charging and dealing with this person for contempt. That conviction was overturned on appeal because a proper process hadn’t been followed and the defendant hadn’t been given an opportunity to properly respond to the charge. But the… interestingly, in that appeal process there was never some ruling that said, well, blowing a bubble-gum bubble can never be a contempt, that you couldn’t - shouldn’t have been dealt with for contempt for that behaviour. It was just the process itself which was found to be lacking.

Gemma: There’s also instances of jurors being charged with contempt, isn’t there?

Helen: There are very rare cases of jurors being charged with contempt in Victoria. But there is a Jurors Act which contains a number of offences that jurors might commit in the course of doing their jury duty. One of those offences, for example, is conducting your own enquiries. When somebody is empanelled and sworn in to sit on a jury, they have to make their decision … they swear that they’ll make their decision based only on the evidence that’s presented in court. They’re not allowed to go away and play detective and make their own enquiries.

Gemma: Which is even easier now with social media.

Helen: Yes, it’s always been the case that you’re haven’t been allowed to do that, that prohibition’s been in place, but once upon a time it might have involved going to a library and looking up old newspapers or something like that but now you can - a juror could quite readily conduct that research on the way home on the bus on their mobile phone; just type in the accused’s name and find out a lot of information that isn’t going to be presented in the course of the proceedings, including about perhaps past convictions.

Gemma: Has that ever happened? Has a juror ever been charged with contempt based on stuff they’ve seen on social media or is that something…?

Anna: It’s interesting. The courts tend to deal with it not so much by, if you like, punishing the juror for contempt because what’s of more issue and concern for the judge is that the trial proceeds appropriately and that the accused gets a fair trial. So what tends to happen in practice … being the case both in Queensland and in the UK where this type of scenario has arisen is that the judge will dismiss the jury and that means that the matter has to be re-heard with a new jury before a new judge with additional costs, obviously, to all the parties and additional use of court time. One of the things we’re looking at in our consultation paper, and in our review, is the ongoing appropriateness or validity of some of the assumptions underpinning the law of sub judice contempt. So, the assumptions that are made about what is required in order for a jury to be able to make a decision solely based on the evidence put before them in court. Does that still mean, in today’s age, that the jury needs to be, if not physically sequestered or removed from the outside world, do they still need to be protected and sequestered from the prejudicial news reports?

Gemma: I was going to say, once upon a time, they were hidden away, weren’t they?

Anna: They were. And a really good example of that was a case where jury members wanted to understand the meaning of a word, and so they googled the word and found an online dictionary to define ‘reasonable doubt’. And that was found to be a species of contempt.

Gemma: Because you’ve got to follow the court direction.

Anna: That’s right. I mean…

Helen: And you might get – you might look up what that means and get a definition from an unreliable source or from a source from another jurisdiction that has another meaning. Also, there was a very recent South Australian case where a verdict was overturned because the judge had not discharged some jury members who had done their own research. Well, one jury member had done their own research. They had visited the site where an offence was said to have been committed and taken some photos of that site and that was because it was fairly critical to the evidence whether or not that site was well lit or not, as to whether other people would have observed what happened there. And so there was some doubt about how well lit it was and some photos had been tendered by the defence to suggest that this was a very well-lit area because of a street light that was near the house that one of the jurors, contrary to the directions that that juror would have received, went to the site themselves and took some photographs and then came back and showed them to two other jurors before there was some intervention from the court. The juror who took the photographs was discharged but there was still enough remaining jurors that they could reach a verdict. The two jurors that had discussed this were asked by the judge whether they could put it out of their mind, and they said that they could, and the trial judge was content with that. On appeal, the appeal court judges said that, you know, said in brief that lay people just don’t have that capacity to compartmentalise their mind like that. There’s no way they couldn’t have had that discussion in mind and therefore overturned the verdict.

Nick: One thing we haven’t talked about yet is the whole area of contempt by publication, which the Commission is also looking at. And we’ve had a situation in Victoria in the last few months where the DPP has actually charged a number of journalists with contempt over reporting of the Pell case. So, Anna, what’s all that about? Why have…what have these journalists done and these media outlets and why have they been charged?

Anna: So, the journalists reported on the verdict of a sexual abuse case by…

Nick: Involving George Pell.

Anna: Involving George Pell, yes.

Nick: And I think some of them actually had the front-page newspaper saying ‘Censored’, didn’t they? I mean, why were they saying that they had been censored?

Anna: So, the newspaper reports were made at a time when suppression orders were in place for the first trial of George Pell. There was a subsequent trial which was later withdrawn, which meant that the suppression order could be lifted, and the case could be reported on in Victorian media.

Nick: So, this is a kind of contempt that is called sub judice.

Anna: That’s right.

Nick: And why should these things be kept secret? What’s the purpose of this law?

Bruce: Basically, the rule is that the jury hearing the matter, or the potential jurors, shouldn’t be exposed to information which in the running of the trial would be regarded as inadmissible. All rules about inadmissibility over centuries have been based around the idea that the jury should be protected from information that’s regarded as prejudicial because it might cause them to deliberate or reason in the present case in a way that’s unfair or biased or partial against the accused person.

Helen: George Pell was facing two sets of charges that…different incidents, different complainants separated in time and place, so those two trials were not going to be… they were separated. The two sets of charges were going to be heard separately. Obviously, they can’t be heard concurrently so one has to go before the other. And the fear is that if the jury in the second trial becomes aware of the circumstances and the outcome of the first trial, whatever that might be, that will influence them in determining and weighing the evidence in the second trial. So, as is not unusual, where one accused is facing two sets of charges that have to be separated in time, there might be a suppression order that limits reporting on the first trial so that the second trial is not contaminated by the evidence that has come out or the outcome of the first one. Therefore, when the verdict was released, no newspaper could say, without breaching that order, that George Pell had been found guilty. Nonetheless, the news – the verdict’s not handed down behind closed doors. The verdict wasn’t handed down in closed court. It’s handed down in open court, so the news gets out. People become aware of it and the word spreads. And it was reported on in social media and on the internet and by newspapers in other jurisdictions, potentially beyond the reach of the Victorian courts who had made the order but not beyond the eyes of Victorians who can get on the internet and read about that.

Gemma: And, I mean, you could say that if you open a newspaper within Victoria and you see ‘Censored’ across the front page, the first thing you’re going to do is google ‘Australian censored what?’ You know, you’ll pick up from international media what’s happening.

Helen: That’s at the heart of it, the idea that if you cover the fact that something’s happened but you can’t report on it, but others can, in a sense, you’re directing people to go and do that research for themselves.Bruce: But what the Pell case really illustrates is the nature of that fundamental conflict at the heart of sub judice contempt. On the one hand you have the media who, of course, try to act professionally and within the law. They want to report matters and issues that the community feels entitled to know about but that, of course, is in tension with the fact that the court, acting in accordance with all of the principles of avoiding prejudice to a pending trial which could result in an unfair trial, wants to limit what the media can report.

Helen: But in all of this it’s difficult to separate out the different issues, because so much of the discussion has gone immediately to, “It’s just impossible, you can’t control the internet. These orders are futile and silly and look how silly they look.” You know, because this is being covered overseas and people can find out this information and it’s not really secret. There might be some truth to that but first you need to consider, was there a point in these orders? What purpose did they serve? Was it correct to try and limit publicity of the first trial so that the second trial was not tainted by it, so that the jurors were not aware of it? If we think those orders are necessary and that the fair trial in relation to the second series of charges did require that news of the first one be supressed, then we have to tackle this bigger issue of well, how would you enforce those orders in this day and age? And it's not a question that arises in every case. It’s also easy to say, ‘it’s all useless now, you know, you can’t fight the internet, you know, once word is out there there’s nothing you can do about it’, because most…realistically, most trials don’t get the publicity that the George Pell trial received. Realistically the international media does not care less about, you know, criminal prosecutions in the state of Victoria. So, it’s a rare case and we also have to consider to what extent do we need to change and reform the law based on these rare and high-profile cases that come along when, in the ordinary course, the orders may well be respected and enforced without any complexity.

Nick: We should say, too, that the Pell verdict is currently the subject of an appeal which is currently on foot, and at the time of recording this podcast we don’t know the outcome of that. So, there’s one other form of contempt that we haven’t talked about which is disobedience contempt.

Helen: Disobedience contempt arises when the court makes an order, or somebody gives an undertaking to the court that they will or won’t do something and then they don’t comply with the order. It’s often referred to as civil contempt. So, all the other contempts that we’ve been talking about, they’re criminal contempts and if you’re found guilty of committing one of those other types of contempt it’s a criminal offence. You’re convicted of contempt. But disobedience contempt, civil contempt, where you fail to comply with an order, doesn’t necessarily result in a conviction. The purpose of that type of contempt is to give the court power to make orders to force your compliance with the order. But all of these lines between using contempt to secure compliance and using contempt to punish non-compliance are very, very blurry. And this area of the law is perhaps one of the messiest and the one that generates, perhaps, the most litigation. The confusion about what is the nature of contempt; what beast are we dealing with here? Because it defies categorisations being criminal or civil.

 Gemma: Has anyone been to jail for contempt?

Anna: Yes. So, there’s only been a few cases in Victoria where people were sent to jail for contempt and one of them was Derryn Hinch.

 Gemma: Oh, of course. 

Helen: Yeah, if you mean publication contempt for sub judice contempt. Yeah, it’s rare but Hinch is an example.

 Anna: Hinch is an example.

Helen: But other types of contempt certainly. So, contempt in the face of the court which might involve not giving evidence, for example, when you’re being summoned and just refusing outright to give evidence. Certainly, people get sentenced to terms of imprisonment for that.Anna: And certainly, where people are violent or abusive or use offensive or threatening language. There’s been cases in the Victorian Supreme Court that have resulted with people being sentenced to imprisonment. In this case, there was the Slaveski matter. They were in prison for 24 months with a minimum of 15 months before becoming eligible for parole and that sentence was appealed but the appeal of the sentence was refused.

Helen: Imprisonment for publication contempt is an interesting question and one that’s raised in the consultation paper. That some people think, is imprisonment ever an appropriate punishment for sub judice contempt for a newspaper or a journalist publishing something which has a tendency to interfere with proceedings. Particularly when you don’t have to do it intentionally, it might be inadvertent. Is imprisonment ever appropriate? And some people have suggested, and it’s noted in the consultation paper, that it might be necessary to retain that because otherwise, for example, a newspaper might, if we rely on fines, a person’s employer might pay those fines or a newspaper may be able to make that decision of - I talk about newspaper, that’s so old school, but a publisher, whoever they might be - can sort of weigh up ‘well, here’s the fine, here’s the maximum’, assuming that a maximum is imposed, ‘is it worth the risk? Will we just publish it anyway?’ Whereas, potentially, the threat of those other punishments, particularly, imprisonment, means that that sort of reasoning about ‘is it worth it? Do I take the risk?’ is less likely to enter into the equation.

Nick: We’ve only had time to touch on a few of the issues with contempt of court. If you want to know more visit lawreform.vic.gov.au and check out the consultation paper. Join us again for the next episode of ‘Old Law, New Law’ when we’ll be talking about committals and whether they should be abolished. See you next time. Thank you. 

 

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